Thursday, August 28, 2014

If college men accused of sexual assault had a group like the NFL Players Association -- or anyone -- fighting on their behalf, things would be different

NFL Commissioner Roger Goodell's announcement yesterday that he is getting tough on domestic violence -- any NFL employee found to have engaged in assault, battery, domestic violence or sexual assault that involved physical force will be suspended without pay for six games for a first offense, banned for life for a second offense -- was hailed by women's groups as a "big win" and by progressive news outlets as "stunning in its earnestness and clarity." Even with this announcement, NFL players will still have more rights than college men accused of similar sex offenses.

You see, NFL players have a very powerful union that advocates for them. College men have nobody to speak for them.

The NFL's Personal Conduct Policy provides that personnel found in violation of a policy who appeal are entitled to a prompt hearing pursuant to Article 46 of the NFL's Collective Bargaining Agreement. According to Article 46 of the Collective Bargaining Agreement, "the Commissioner shall, after consultation with the Executive Director of the NFLPA, appoint one or more designees to serve as hearing officers."

This is in marked contrast to the procedure on college campuses, where there is no requirement for consultation with any group that represents the interests of presumptively innocent men accused of sexual assault. One young man accused of a sex offense recently sued his school claiming "that the university refused his request to have a student on the hearing panel, which was made up of three colleagues of the victim's father, a Vassar professor." So much for fair play, the rule of law, and the bare semblance of justice.

Wait. It gets better. The NFL rules provide: "In any hearing provided for in this Article, a player may be accompanied by counsel of his choice." (Article 46, Section 2(b).) The NFL even provides for hearings to be rescheduled to accommodate the schedules of players' lawyers. (Article 46, Section 2(i).)

This is in contrast to the practice of most colleges, which don't allow lawyers to advocate for the accused in sex offense proceedings. Lawyers are, in fact, considered a hindrance. The Department of Education does not require institutions to allow attorneys to attend disciplinary hearings even in an advisory role -- not even where the accused is subject to criminal proceedings and might waive important Constitutional rights in his college hearing.

There's more. The NFL rules provide: "The [NFL Players Association] . . . have the right to attend all hearings provided for in this Article and to present, by testimony or otherwise, any evidence relevant to the hearing." (Article 46, Section 2(b).) Immediately after the new rule was announced, the Players Association sprung into action and made it clear they will participate in appropriate cases: "We were informed today of the NFL's decision to increase penalties on domestic violence offenders under the Personal Conduct Policy for all NFL employees," the NFLPA said in a written statement. "As we do in all disciplinary matters, if we believe that players' due process rights are infringed upon during the course of discipline, we will assert and defend our members' rights." One news outlet took offense to the union's statement that it will seek to uphold due process rights, saying it means that "unfortunately, . . . the players can and will fight tooth-and-nail to avoid being punished under these rules." Heaven forbid we should allow due process to intrude on punishment!

Lucky for the feminist extremists and law-and-order zanies, there is no impediment to the rush to judgment on campus. College proceedings do not allow any group advocating for the accused to participate in the hearing on behalf of the accused. That's just as well, because there are no such groups.

The NFL rules also provide for the fair exchange of discovery before the hearing: ". . . the parties shall exchange copies of any exhibits upon which they intend to rely no later than three (3) calendar days prior to the hearing. Failure to timely provide any intended exhibit shall preclude its introduction at the hearing."

This is in contrast to the practice of many colleges, some of which don't even bother to provide the accused with notice of charges or the names of witnesses against him. Hardly any schools (only 15%) employ formal rules of evidence in sex hearings, even though the majority of schools do abide by rape shield laws. See here.

Is it at all surprising that NFL players have far more rights than college men? Even illegal aliens have more rights than college men! Is there any group in America that stands to lose as much as college men accused of rape but that is afforded fewer rights? I can't think of one. And the most disturbing thing? Virtually nobody cares.